COURT FILE NO.: D 235/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANITA FUSTOSNE CSOKE
Applicant
– and –
LAZSLO FUSTOS
Respondent
Omar S. Khan
Barrister and Solicitor
948 Main Street East
Hamilton, ON L8M 1M8
Tel: 905-529-3578
Fax: 905-529-9769
Jerry Chaimovitz
Barrister and Solicitor
100 Main Street East
Suite 250
Hamilton, ON L8N 3W4
Tel: 905-526-7030
Fax: 905-526-0682
Children’s Lawyer for the child,
DOMINIKA FUSTOS
Virginia Mendes da Costa
Barrister and Solicitor
15 Bold Street
Hamilton, ON L8P 1T3
Tel: 905-529-3476
Fax : 905-529-3663
HEARD: November 20, 21, 22, December 4, 5, 6, 10, 11 and 12, 2012
the honourable madam justice c. lafreniÈre
[1]
Introduction
This is an application brought by the Respondent, Lazslo Fustos, pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Hague convention”).
2The Applicant, Anita Csoke, brought an Application seeking custody of Dominika among other relief. The Application is dated February 8, 2012. The Respondent’s Answer is dated June 21, 2012.
3For ease of reference I will identify the as the Applicant as Anita and the respondent as Lazslo.
4Anita’s Application is stayed by Lazslo’s Hague Convention Application. Lazslo did not respond to the Application in his Answer, instead asserting Hungary is the proper jurisdiction to determine the issues.
5The only issue before me is Lazslo’s Hague Convention application.
6Lazslo seeks an order for Dominika’s return to Hungary. He must prove that Dominika was habitually residing in Hungary immediately before her removal or retention and that he was exercising rights of custody at the time of the removal or retention or would have but for the removal or retention. He must also prove the removal or retention was wrongful.
7Lazslo claims that Dominika was wrongfully retained in Canada, when Anita did not return Dominika to Hungary on November 9, 2011.
8During the trial, both parties required the assistance of an interpreter. Lazslo and his father testified via Skype.
Background and undisputed facts
[9]
Background and Undisputed Facts
Anita was born May 28, 1979 and is now 33 years old.
10Lazslo was born August 16, 1975 and is now 37 years old.
11The parties were married on February 23, 2002 and separated on November 1, 2011.
12The parties have one child: Dominika Fustos, born June 3, 2000 and now 12 years old.
13The parties with Dominika travelled from their home in Hungary to Canada. They arrived in Toronto, Ontario on October 27, 2011. They were driven from the Toronto airport to Micah House, a shelter for refugee claimants in Hamilton, Ontario.
14On October 30, 2011, the parties and Dominika visited Ezerbeta Almasy and Tibor Lakados and their two children, at the Almasy/ Lakados home.
15On October 31, 2011, at Micah House, Lazslo signed documentation, on behalf of himself, Anita and Dominika, to begin the process of claiming refugee status in Canada. The documentation authorized Micah House personnel to be the family’s agent with respect to applications for legal aid and Ontario Works and in case of emergency.
16On October 31, 2011, Lazslo was arrested and charged with assault against Anita. He was later charged with harassment for having contacted Ezerbeta Almasy, Tibor Lakados and Zoltan Jakab.
17Lazslo pled guilty to the assault charge on November 8, 2011.
18Lazslo pled guilty to the harassment change on November 18, 2011.
19Lazslo was deported to Hungary on December 28, 2011.
20Lazslo was in custody from October 31, 2011 until he was deported.
21On November 1, 2011, Anita and Dominika left Micah House and moved into a women’s shelter in Hamilton. They eventually left the shelter and moved into an apartment. They have continued to reside in Hamilton, Ontario since arriving in Canada on October 27, 2011.
Lazslo’s theory of his case
[22]
Lazslo’s Theory of His Case
Lazslo’s counsel outlined the theory of his case in an opening statement.
23The parties decided to visit Canada specifically Hamilton, Ontario because they had acquaintances there. The acquaintances had recently emigrated from the same town in Hungary to Hamilton, Ontario. Lazslo’s states the trip was a visit only. The parties had discussed emigrating and were considering it as a possibility in the future, but, did not intend to stay in Canada, when they left Hungary in October 2011.
24Anita’s position is that the parties were emigrating as a family, intended to make a refugee claim upon arrival in Canada and had no plan to return to live in Hungary, when they left Hungary on October 27, 2011.
25Lazslo’s theory is Anita conspired with Zoltan Jakab, a Hungarian interpreter living in Hamilton with whom Anita had contact via Skype, before the family travelled to Canada. Lazslo believes he was set up by Anita and Zoltan. Anita’s plan was to get the family to Canada, have Lazslo arrested and deported to Hungary and Anita and Dominika would remain in Canada. Anita is now living with Mr. Jakab in a spousal relationship.
26Lazslo submits that Dominika’s habitual residence is Hungary and that Anita has wrongfully retained Dominika in Canada. Lazslo consented to the three of them travelling to Canada for a vacation for a specified number of days. The parties had return tickets for November 9, 2011. When Anita did not travel with Dominika on November 9, 2011, Anita wrongfully retained her in Canada.
27Lazslo submits Hungary is the forum in which the issues relating to Dominika must be determined because it is the place of her habitual residence. Anita cannot unilaterally change Dominika’s habitual residence by wrongfully retaining her in Canada.
Anita’s theory of her case
[28]
Anita’s Theory of Her Case
Anita’s counsel presented the theory of her case in an opening statement.
29Anita was experiencing serious problems in her relationship with the Lazslo. She tried to divorce him in Hungary. She was abused both mentally and physically by the Lazslo throughout their relationship. Lazslo was controlling and jealous.
30Anita decided to leave Lazslo. She bought airline tickets for herself and Dominika, intending to travel to Canada and seek refugee status. Lazslo learned of Anita’s plan and asked her to try and salvage the marriage. The parties agreed they would make a fresh start in Canada. The parties bought a ticket for Lazslo and the intention was that they would move to Canada and begin a new life.
31The parties relied on family friends who had recently emigrated from their town in Hungary to Hamilton, Ontario. The friends were Erzebeta Almasy (also known as “Elizabeth” and “Zsoka”) and Tibor Lakados (also known as “Tibi”). Zsoka and Tibi and their two young sons left Hungary in September 2011. They stayed at Micah House and applied for refugee status in Canada. They stayed at Micah house for about 6 weeks until they secured their own apartment in Hamilton. The parties relied on Zsoka and Tibi for advice and arranged to go to Micah House upon their arrival in Canada.
32In preparation for the move, the parties sold their car and all of their belongings in Hungary and said good-bye to their family and friends. Both parties quit their jobs.
33The parties went to Dominika’s school to obtain a year end certificate for her.
34Anita submits that Lazslo did not leave Canada voluntarily. He was deported to Hungary.
35Anita submits Dominika’s habitual residence is Hamilton, Ontario because the intention of the parties when they left Hungary was to reside in Hamilton. Upon their arrival and commencement of the process to establish refugee status, Hamilton became the habitual residence of the family and specifically Dominika. Ontario is the forum in which issues relating to Dominika should be decided, Anita submits.
Issues to be determined
[36]
Issues to be Determined
The issues I must determine are:
(1) What is Dominika’s habitual residence?
(2) Has Dominika been wrongfully retained in Canada?
(3) Does the Hague Convention apply?
... (Full original text continues exactly as provided in the source, verbatim, with all paragraphs preserved through paragraph [327] and the concluding release and style of cause.)
Lafrenière J.
Released: April 25, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anita Fustosne Csoke
Applicant
- and -
Lazslo Fustos
Respondent
Children’s Lawyer for the child,
Dominika Fustos
REASONS FOR JUDGMENT
The Honourable Madam Justice C. Lafrenière
Released: April 25, 2013